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ARKANSAS COURT OF APPEALS DIVISION II No. CV-16-565

Opinion Delivered March 8, 2017 MULTI-CRAFT CONTRACTORS, INC. AND GALLAGHER BASSETT APPEAL FROM THE ARKANSAS SERVICES, INC. WORKERS’ COMPENSATION APPELLANTS COMMISSION [NO. G201671] V. REVERSED IN PART AND RICK YOUSEY AFFIRMED AS MODIFIED IN PART APPELLEE ON DIRECT APPEAL; AFFIRMED IN PART AND AFFIRMED AS MODIFIED IN PART ON CROSS- APPEAL

N. MARK KLAPPENBACH, Judge

Appellee Rick Yousey was seriously injured in an accident while unloading

equipment for his employer, appellant Multi-Craft Contractors, Inc. Yousey’s injuries were

accepted and medical treatment was provided, but Multi-Craft later controverted his claims

for permanent disability benefits for his brain, loss of vision, and facial-nerve injury. The

Workers’ Compensation Commission (Commission) awarded Yousey benefits for

impairments of his brain and left eye but found that he was not entitled to benefits for a

nerve injury. On appeal, appellants contend that the impairment ratings for his brain and left

eye are not supported by substantial evidence and that the Commission erred as a matter of

law. Yousey has filed a cross-appeal challenging the Commission’s findings regarding his left

eye and facial-nerve injury. Cite as

As a result of his February 24, 2012 accident, Yousey suffered numerous facial

fractures, including fractures of the cheekbones, nose, sinuses, jaw, and orbital bones, as well

as a broken foot, broken hand, and torn rotator cuff. His neurologist, Dr. Michael Morse,

testified that Yousey had the worst skull fracture he had ever seen and that he was lucky to

be alive. Yousey had surgeries on his face and to realign his left eye, which had been pushed

back into his head. He testified that he suffered from double vision and blurred vision since

the accident, and as a result, he could no longer obtain a commercial driver’s license. Yousey

said that he takes prescription medication for headaches, which he suffers from every day, and

resorts to getting painful shots in his head to treat the headaches when they become

unbearable. Other symptoms he suffers from include loss of short-term memory, numbness

and coldness in his left cheek, loss of his senses of taste and smell, slower speech, emotional

lability, and depression.

Dr. Morse testified that Yousey’s symptoms are consistent with a frontal-lobe brain

injury. Dr. Morse referred Yousey to Richard Back, Ph.D., a clinical psychologist, for a

neuropsychological evaluation. Dr. Back tested Yousey and found markedly impaired

memory functioning and left-hand impairment in terms of fine and gross motor tasks.

Yousey had improved somewhat when Dr. Back tested him again two years later. Dr. Back

opined that Yousey’s test results and all of his symptoms are consistent with the traumatic

head injury he had sustained and assessed a permanent-impairment rating of twenty-nine

percent to the body as a whole.

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“Permanent impairment” has been defined as any permanent functional or anatomical

loss remaining after the healing period has ended. Wayne Smith Trucking, Inc. v. McWilliams,

,

. Any determination of the existence or extent of

physical impairment shall be supported by objective and measurable physical or mental

findings.

(c)(1)(B) (Repl. 2012). “Objective findings” are those

findings which cannot come under the voluntary control of the patient.

(16)(A)(i). Medical opinions addressing compensability and permanent impairment

must be stated within a reasonable degree of medical certainty.

(16)(B). However, there is no requirement that medical testimony be based solely

or expressly on objective findings; the statute requires only that the medical evidence of the

injury and impairment be supported by objective findings. Wayne Smith

An injured employee is entitled to compensation for the permanent functional or

anatomical loss of use of the body as a whole whether his or her earning capacity is

diminished or not.

The Commission is authorized to determine what portion of the

medical evidence to credit and to translate that evidence into a finding of permanent

impairment using the AMA Guides to the Evaluation of Permanent Impairment; the Commission

may assess its own impairment rating rather than rely solely upon determination of the

validity of ratings assigned by physicians.

In reviewing decisions from the Commission, we view the evidence and all reasonable

inferences deducible therefrom in the light most favorable to the Commission’s decision and

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affirm if that decision is supported by substantial evidence. Rippe v. Delbert Hooten Logging,

,

(2007). Substantial evidence is evidence that a

reasonable mind might accept as adequate to support a conclusion.

Questions

concerning the credibility of witnesses and the weight to be given their testimony are within

the exclusive province of the Commission.

The Commission found that Yousey was entitled to a permanent-anatomical-

impairment rating of twenty-nine percent to the body as a whole for a brain injury. The

Commission listed three objective findings to support its decision: (1) the extreme damage

to Yousey’s face and skull evidencing the traumatic forces applied to his brain; (2) the

presence of pneumocephalus; and (3) the presence of evidence of a shear injury on an MRI.

Appellants argue that none of these constitute objective findings to support an impairment

due to a brain injury.

The Commission first concluded that the severity of the damage to Yousey’s head

was objective evidence of the great force applied to his head, skull, and brain. The

Commission noted Dr. Back’s testimony that the force it took to break the multitude of

bones in Yousey’s face was consistent with the type of force that would cause a brain injury.

We agree with appellants that the force of the accident and resulting broken bones are not

objective medical findings to support a brain injury. Although great force was inflicted in

the accident, there was no evidence that the numerous fractures Yousey suffered indicated

that he necessarily injured his brain as well.

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The Commission next found that Yousey’s CT scan showed pneumocephalus, which

it said was “objective evidence of skull fracture, and a skull fracture must involve trauma to

the brain.” We agree with appellants that the Commission used conjecture to find that a

skull fracture “must involve” trauma to the brain. Dr. Morse testified that pneumocephalus

was air inside the skull as a result of the skull fracture. When asked what this meant

regarding a brain injury, Dr. Morse said that “it means his skull fracture was pretty bad is all

that means.” There was no evidence that the presence of pneumocephalus was an objective

finding of a brain injury.

Lastly, the Commission relied on evidence of a shear injury on an MRI. Dr. Morse

testified that Yousey’s MRI showed something in his left internal capsule, but he could not

tell from the MRI if it was a cyst that he had been born with, a shear injury due to the head

injury, or an old, small infarct from a prior stroke. Dr. Morse was asked if he could say it was

more likely to be shearing when considering all of the evidence indicating that Yousey had

sustained a brain injury, but Dr. Morse said he could not say that. The Commission found

that it was more likely to be a shear injury because there was no other evidence that Yousey

had ever suffered a stroke, and the accident was consistent with a shear injury. Appellants

argue that the Commission used conjecture and speculation in reaching this conclusion. We

agree. The evidence established only that Yousey’s MRI showed a potential shear injury.

Dr. Morse could not opine that it was more likely to be a shear injury than the other two

possibilities. We hold that this does not constitute an objective finding of a brain injury.

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Substantial evidence exists only if reasonable minds could have reached the same conclusion

without resort to speculation or conjecture. Serrano v. Westrim, Inc.,

,

. Conjecture and speculation, even if plausible, cannot take the place of

proof.

Our court has established that neuropsychological testing, without more, is not

adequate to establish an organic brain injury by “objective findings.” Parson v. Ark. Methodist

Hosp.,

,

(2008); Rippe,

,

. Although Yousey’s fractures and pneumocephalus were objective findings, they

supported an injury only to his skull or his head, not his brain. See

(holding that

the objective findings of a facial hematoma and contusions supported an injury only to

appellant’s head, not her brain). Dr. Morse testified that based on the technology that was

available, there were no objective findings of an injury to Yousey’s brain. We hold that the

evidence cited by the Commission does not satisfy the statute’s requirement for objective

findings to support a brain injury. Therefore, we reverse the Commission’s decision

awarding Yousey permanent-impairment benefits for his brain.

The Commission found that Yousey was entitled to a permanent-impairment rating

of twenty-four percent to the body as a whole for his loss of vision. The Commission

adopted the reasoning and assessment of Dr. Andrew Lawton, an ophthalmologist with a

speciality in neuro-ophthalmology. As a result of the many fractures in Yousey’s face,

including a left-orbital-blowout fracture, Yousey’s left eye was downwardly displaced and

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sunken in. Despite surgery, his eyes remained misaligned, and he suffered from double

vision. Dr. Lawton testified that the AMA guides provided three components for the

measurement of visual impairment, and the third component encompassed double vision.

If a person has double vision within the central ten to twenty degrees of vision, Dr. Lawton

said that it is interpreted by the AMA rules as a total loss of vision in that eye. A person

would have to cover that eye in order to function. Dr. Lawton said that Yousey has double

vision even less than ten degrees away from center of vision. According to Dr. Lawton,

Yousey is entitled to a rating for total loss of vision in one eye, which is a twenty-five

percent impairment of the entire visual system and translates to a twenty-four percent

impairment of the whole person. The Commission agreed.

Appellants argue that this finding is not supported by substantial evidence because

Yousey’s visual acuity and peripheral vision were not affected by his injury; he can still see

out of his left eye. Alternatively, appellants argue that Yousey should not be awarded

benefits to the body as a whole because his injury is a scheduled injury. Under the

scheduled-injury statute, appellants argue that Yousey did not suffer total loss of vision. On

cross-appeal, Yousey agrees that his eye injury is a scheduled injury and asserts that he is

entitled to a rating for 100 percent loss of use of his left eye.

The test of whether an injury falls within the scheduled-injury category is primarily

a question of law. Fed. Compress & Warehouse Co. v. Risper,

,

(1996). An eye injury and the resulting impairment, including double vision, fall under

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the scheduled permanent-injury category as set forth in Arkansas Code Annotated section

11-9-521. See

This statute provides that an enucleated eye, in which there was useful

vision, is a scheduled injury for which an employee shall receive weekly benefits in the

amount of the permanent partial-disability rate attributable to the injury for 105 weeks.

(a)(14). Compensation for the permanent loss of eighty percent or

more of the vision of an eye shall be the same as for the loss of an eye.

(c)(1).

We agree with the parties that Yousey’s injury is a scheduled injury. Dr. Lawton’s

testimony provided substantial evidence to support the Commission’s finding that Yousey

was entitled to a rating for 100 percent loss of vision in his left eye; however, because an eye

injury is a scheduled injury, the Commission erred in converting the rating to an impairment

to the body as a whole. A claimant who sustains a scheduled injury is limited to the

applicable allowances set forth in Arkansas Code Annotated section 11-9-521. Fed. Compress

& Warehouse

We therefore affirm the Commission’s finding of 100 percent

impairment to Yousey’s left eye but modify the award to reflect that it is a scheduled injury

and is not converted to an impairment to the body as a whole.

On cross-appeal, Yousey argues that there is no substantial evidence to support the

Commission’s refusal to award a rating for his trigeminal nerve injury. The Commission

found that Yousey was not entitled to a rating for this injury because the rating assessed by

Dr. Morse was based on Yousey’s level of pain. When determining physical or anatomical

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impairment, neither a physician, any other medical provider, an administrative law judge, the

Workers’ Compensation Commission, nor the courts may consider complaints of pain.

(16)(A)(ii)(a). In Dr. Morse’s deposition, Yousey’s counsel asked him

if Yousey would be entitled to a rating for a trigeminal nerve injury based on Table 9 of page

145 of the AMA guides. Yousey’s counsel noted that the table rated mild, moderate, and

severe neuralgic pain, and Dr. Morse assigned a moderate rating based on the level of pain

Yousey reported from his headaches.

Yousey relies on this court’s opinion in Wayne Smith Trucking, Inc.,

,

, for the proposition that damage to the trigeminal nerve is an accepted

finding to support an impairment rating. The impairment rating affirmed in that case,

however, was not based solely on complaints of pain. Here, when asked to assess a rating,

Dr. Morse clearly considered only Yousey’s level of pain caused by his headaches. Substantial

evidence supports the Commission’s denial of permanent-impairment benefits for Yousey’s

nerve injury, and we affirm.

Reversed in part and affirmed as modified in part on direct appeal; affirmed in part and affirmed as modified in part on cross-appeal.

GRUBER, C.J., and GLOVER, J., agree.

Bassett Law Firm LLP, by: Curtis L. Nebben, for appellants.

Cullen & Co., PLLC, by: Tim Cullen; and Jason M. Hatfield, P.A., by: Jason M.

Hatfield, for appellee.

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